Madam Meminotu Ibrahim V. Dr. Lasisi Osunde & Ors (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

On 14/7/98 this court heard the motion which was filed on 16/1/98 in which several reliefs were set out. It granted an order consolidating the three appeals that arose from Suit No. B/154/88. The three appeals are: –

(1) Appeal against the interlocutory ruling of the Benin High Court dated 17/6/93 on the admissibility of Exhibit “IDI”;

(2) Appeal against the judgment of the substantive Suit delivered on 3/5/95; and

(3) Appeal against the ruling of 18/4/96 in which the lower court refused to stay the execution of the judgment and instead ordered the appellant to pay a certain sum of money into court.

The main appeal is based on the amended notice dated 5th May, 1999 which was filed pursuant to the motion dated 4th May, 1999 and filed on 6/5/99. The application sought to further amend the notice and grounds of appeal earlier filed on 24/7/98 and it was granted on 15/6/99.

In paragraph 27 of the amended statement of claim the plaintiff claimed against the defendants jointly and severally as follows:-

“(a) A declaration that plaintiff is owner by inheritance of all that parcel of land verged red in Plan No JAA/BD/403/88 of 11th August, 1988 filed along with this statement of claim and that she is the only person entitled to be granted a certificate of occupancy in respect of the said parcel of land.

(b) An order of perpetual injunction restraining the defendants by themselves, servants, and/or privies from doing on the land anything inconsistent with the rights and interest of the plaintiff”.

The defendants denied the claim and each of them counter-claimed against the plaintiff for the following declaratory reliefs set out in paragraph 11 of the 2nd further amended joint statement of counter-claim:

“11(a) In the premises therefore the 3rd defendant claims from the plaintiff that having succeeded to his childless elder brother late Jubrila Braimoh (Ibrahim) Goubadia in accordance with Bini Native Law and Custom is the one entitled to inherit all that parcel of land situate at Mission Road, Benin City within Benin City Judicial Division containing an area of about 1458.646 square metres and verged red in Plan No. OSA/1933/BD88 filed by the defendants in this suit, and he is therefore the person that is entitled to statutory right of occupancy in respect of the said parcel of land. The value of the land is N100.00 (b) An order for the plaintiff to render an account to the 3rd defendant in respect of the monies, rent and profits collected or received or to be collect (sic) by the plaintiff and or her agents from the part of the land verged red in Survey Plan No. OSA/1933/BD 88 filed herewith.

(c) Perpetual injunction restraining the plaintiff and her agents, servants or privies from trespassing or doing anything whatsoever unto the said land which is the portion verged red in Plan No. OSA/1933/BD88 filed herewith until after the determination of this suit.

COUNTER-CLAIM OF 1ST DEFENDANT

The 1st defendant repeats his averments in paragraphs 1 to 31 of the 2nd amended statement of defence.